Labor and Employment
Daneshvar Law provides the full range of assistance and representation for our clients in employment-related issues, from preventative advice and training, to counselling on employment-related problems, to representation before state and federal courts and agencies.
1. Wrongful Termination
Wrongful termination describes a situation in which an employee is fired or laid off by the employer for an unlawful reason.
Q:What are some examples of wrongful termination?
A:An employee may be wrongfully terminated if his termination action is:
(a) in violation of state or federal laws against discrimination
(b) violates terms of an employment contract or employee handbook
(c) goes against labor or collective bargaining laws
(d)arises from sexual harassment
(e)or is a form of retaliation by the employer against the employee.
Q:Am I entitled to anything if I’ve been wrongfully terminated?
A: A wrongfully terminated employee may be entitled to lost wages, damages, severance pay or compensation for unemployment. In addition, an employer that wrongfully terminates an employee may be subject to penalties.
Q: Do I need a contract with my employer to be wrongfully terminated?
A: An employee is either employed under a contract or is employed at will. Under At-will employment, the employee or the employer has the option of ending the employment relationship at any time, with or without a reason. In California, employment relationships are presumed to be at-will unless there is a contract between the employee and the employer stating a specific duration of employment. A contract for an indefinite period will generally be considered as creating an At-Will employment relationship. However, an At-Will employment contract may be modified by statements, assurances or promises made by the employer, or by the employer’s failure to comply with the practice of performance reviews, discipline warnings or notifications required by the employer’s own human resources handbook.Contract or no contract, an employer is never allowed to discriminate against an employee based on an unlawful reason or allowed to harass an employee.
Q: Can I still be unlawfully terminated if I am an At-Will employee?
A: The At-Will employment relationship can make it difficult for an employee to bring a wrongful discharge or termination claim against an employer. However, in California, an at-will employee may still have a case against his employer for wrongful termination if the employee can prove his employer violated public policy by firing him.
Q: How do I know if my employer violated a public policy by terminating my employment? Generally, the public policy must be substantial and important and can fall into one of three categories:
- The employee exercised a right under a statute or obligation
- The employee refused to engage in an illegal activity
- The employee reported criminal conduct to supervisors and/or outside agencies (“whistleblower”)
Q: What is a Whistleblower?
A: California law describes a whistleblower as an employee who discloses information about his or her employer to a government or law enforcement agency describing a suspected illegal/criminal action by the employer, such as a violation of a state or federal statute, a violation or noncompliance with a state or federal rule or regulation, or unsafe working conditions or work practices in the employee’s employment or place of employment. According to the California State Attorney General, “Under California Labor Code Section 98.6, if an employer retaliates against a whistleblower, the employer may be required to reinstate the employee’s employment and work benefits, pay lost wages, and take other steps necessary to comply with the law.”
Q: I think I am a victim of Wrongful Termination? What should I do? Keep copies of all materials and communications (both print and electronic) provided by your employer, or between you and your employer, related to your employment, such as an employee’s handbook, letter of appointment, contracts, copies of employee policies, performance reviews, discipline warnings, etc. Make notes about verbal communications between you and your employer regarding your employment, including dates. Seek legal advice before you sign anything.
2. Discrimination and Harassment in the Workplace
Employment Discrimination laws seek to prevent discrimination based on race, gender, religion, national origin, physical disability, sexual orientation, and age by employers. Discriminatory practices include bias in hiring, promotion, job assignment, termination, compensation, and various types of harassment. Harassment based on sex, race, religion,pregnancy, disability, and age, is generally defined as a course of conduct which annoys, threatens, intimidates, alarms, or puts a person in fear of their safety. Harassment is unwanted, unwelcomed and uninvited behavior that demeans, threatens or offends the victim and results in a hostile environment for the victim.
Q: What are some examples of harassment?
A: Some examples are epithets, derogatory comments or slurs and lewd propositions, assault, impeding or blocking movement, offensive touching or any physical interference with normal work or movement, and visual insults, such as derogatory posters or cartoons.
3. Gender Discrimination
Q: Is my employer allowed to discriminate against me based on my gender or my sexual orientation?
A: California is one of the fifty states that protects against discrimination because of gender or sexual orientation. The California Fair Employment and Housing Act (FEHA) prohibits employment discrimination based on sexual orientation, including homosexual, heterosexual, bisexual, transsexual and transgender employees. Gender (or sex) and Sexual Orientation discrimination occur when a person is subjected to different or unequal treatment ("discrimination") in any number of situations, when that treatment is based on the person's gender or sexual orientation.
4. Pregnancy Discrimination
Q: What happens if I get pregnant or am pregnant?
A: Unfortunately, pregnancy discrimination still exists in our world. For instance, an employer may hire a less-qualified candidate over one they believe may be planning a pregnancy. An employer may bypass a young woman for a promotion, give her negative evaluations, or accuse her of misconduct as time of her maternity leave approaches. Other times, an employer might not allow adjustments to a woman’s responsibilities so that she can manage medical issues related to her pregnancy despite law that a woman who is temporarily unable to perform her job due to complications of pregnancy must be treated in the same manner as any other temporarily-disabled person. Harassment of a pregnant woman that creates a hostile or offensive work environment is also illegal, whether the harassing party is the woman’s co-worker, supervisor or customer.
Q: What are my rights if I am pregnant or just had a baby?
A: Depending on the policies of the employer and other factors, a woman may be entitled to a period of family leave to care for her new child. Failure to provide for such leave under the terms of the law may be pregnancy discrimination. While on maternity leave, a woman might find that her position has suddenly been eliminated and her responsibilities reassigned. Upon her return to work, she may find that she is denied opportunities for career advancement. The law also provides new mothers with a “reasonable break time for an employee to express breast milk for her nursing child for 1 year after the child’s birth each time such employee has need to express the milk.” Employers are also required to provide “a place, other than a bathroom, that is shielded from view and free from intrusion from co-workers and the public, which may be used by an employee to express breast milk.” Failure to comply falls into the larger category of pregnancy discrimination.
Q: Do I get to take time off from work if I’m pregnant or had a baby?
A: Yes, you are entitled to Pregnancy Leave. Women must be allowed up to four months of leave for medical complications related to pregnancy and childbirth. This leave does not have to be taken all at one time and may include periods both before and after birth. An employer may require an employee to use accumulated sick leave but not accrued vacation time during the disability period for pregnancy and childbirth. In California, an employee may be entitled to an additional 12 weeks of leave after childbirth under the California Family Rights Act (CFRA). Both mothers and fathers can take leave of employment under this law to bond with newborn children.
5. Disability Discrimination
Q: My employer treats me differently than my co-workers because I am disabled.
A: State and federal laws protect any individual with a physical or mental impairment that limits their major life activities—such as walking, seeing, hearing, speaking, communicating, and caring for themselves—provided the individual can perform the essential functions of the job safely and efficiently with reasonable accommodations. Depending on the particular employee's condition, this may include not only persons who traditionally have been regarded as disabled—such as those with impaired vision, hearing, or speech—but also may include those with “invisible” disabilities, such as AIDS or HIV positive, cancer, or learning disabilities. These protections may apply if the individual currently suffers from a disability, has a history or record of a disability, or is perceived to have a disability.
Q: What if I’m disabled? Is my employer required to do anything?
A: These laws require that an employer provide the employee "reasonable accommodations" provided such accommodations do not result in an undue hardship to the employer or a direct threat to health and safety, and provided the individual is able to perform the essential functions of the position.
6. Age Discrimination
The federal Age Discrimination in Employment Act of 1967 (ADEA) describes age discrimination as illegal discriminatory practices in “hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, and any other term or condition of employment” based on age. It protects workers age 40 and older from age discrimination, whether they are applying for a job or already employed. The act of discrimination may occur as an incident affecting one person, or it may be a written or unwritten policy of the employer. ADEA states “An employment policy or practice that applies to everyone, regardless of age, can be illegal if it has a negative impact on applicants or employees age 40 or older and is not based on a reasonable factor other than age.” Furthermore, the Age Discrimination in Employment Act protects older workers against repeated or persistent harassment, such as “offensive remarks about a person's age” that create a hostile work environment. The harasser may be “the victim's supervisor, a supervisor in another area, a co-worker, or someone who is not an employee of the employer, such as a client or customer.” ADEA also protects employees against retaliatory firing if they report their employer for age discrimination.
Q: Why would employers engage in age discrimination?
A: One would assume that older workers would be an asset to a company because they are more experienced and can serve as helpful mentors to younger workers. However, some employers view older workers as liabilities instead of assets, potentially costing the employer more in wages and benefits than younger workers. Companies may even terminate experienced and highly paid workers over 40 due to age and the cost of employing them. Especially during uncertain economic conditions, older workers will be replaced by several younger workers, typically in their 20s and 30s, for less money. “Layoffs” may be disguised opportunities for companies to get rid of older, expensive workers.
7. Sexual Harassment
Q: What is sexual harassment?
A: Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitutes sexual harassment when submission to, or rejection of, this conduct explicitly or implicitly affects an individual's employment, unreasonably interferes with an individual's work performance or creates an intimidating, hostile or offensive work environment. Also, demeaning behavior based on your sex may constitute sexual harassment.
Q: Can my boss fire me for not having sex with him?
A: No. this is type of sexual harassment is called Quid Pro Quo and is absolutely unacceptable. Employers, supervisors, or people in positions of authority are prohibited from requesting sex, or a sexual relationship, in exchange for not firing or otherwise punishing the employee, or in exchange for favors, such as promotions or raises.
Q: What about sexual behavior that occurs in the workplace?
A: A hostile work environment may exist when sexual behavior occurs through the presence of demeaning or sexual photographs, conduct, jokes or threats. The inappropriate behavior or conduct must be either severe or pervasive as to create an intimidating and offensive work environment.
Q: Someone I work with touched me in an inappropriate way. Is that okay?
A: Touching someone in an inappropriate way in the workplace could constitute sexual assault. Sexual assault may occur when the offender subjects the victim to sexual touching that is unwanted and offensive. These crimes can range from sexual groping or assault/battery, to attempted rape.
Family Medical Leave Act violations
Q: What is Family Medical Leave Act?
A: FMLA is based on a Federal law and is administered by the U.S.Department of Labor (DOL), Employment Standards Administration, Wage and Hour Division.
Q: What is CFRA?
CFRA is a state law, which is administered by the Department of Fair Employment and Housing (DFEH). State legislation in 1993 changed the state law to generally conform to the provisions of the FMLA.
Q: What benefits do FMLA and CFRA provide?
A: FMLA/CFRA authorizes an eligible employee to take up to a total of twelve (12) workweeks of paid or unpaid job-protected leave with employer-paid health, dental, and vision benefits during a "rolling" twelve (12)-month period for one or more of the following reasons: (a) the birth of a child or adoption or foster care placement of a child, (b) To care for an immediate family member (spouse, child or parent) with a serious health condition, and (c) when the employee is unable to work because of a serious health condition.
California Wage and Hour Law
Wage and hour rules are governed by the California Labor Code and the Federal Fair Labor Standards Act. Employers often violate three categories of the wage and hour requirements: (a) unpaid wages, (b) unpaid overtime wages, and (c) failure to meet minimum wage requirements. Some of the common causes of wage and hour violations include:
- Employees being misclassified as “exempt” from receiving overtime pay
- Employers not providing their employees with an uninterrupted meal break and rest period
- Employers failing to provide proper pay stubs with all required information (generally including gross wages earned, total hours worked, all deductions, separately itemized, employee's name and social security number, employer's name and address, and all applicable hourly rates during the payroll period).
Q: When do I receive Overtime and how is it calculated?
A: Employees who are paid hourly (non-exempt employees) are entitled to be compensated for overtime hours worked. Overtime is usually defined as any hours worked beyond 8 hours in one workday or beyond 40 hours in one week. In addition, the sixth consecutive workday in one week is ordinarily considered overtime. Employees who work such hours are usually entitled to an overtime pay rate of 1.5x their hourly rate. There may be different rules for employees engaged in alternative work week schedules or part time schedules.
Q: What is the minimum wage rate in California?
A: Effective January 1, 2008, minimum wage is set at $8.00 per hour.
Q: When do I get my rest and lunch breaks?
A: Employees working more than 5 hours in one workday are entitled to one meal period of at least 30 minutes. Employees working more than 10 hours are entitled to two meal periods of at least 30 minutes. On duty meals (such as meetings during lunch periods) should not be deducted from the employee's pay. Employees are entitled to at least one 10 minute rest period for every 4 hours worked.
Q: How much can I recover in Lost Wages and Penalties for Wage and Hour Violations?
A: Although it may not seem like much at first, the wages you lost over time can be quite substantial. The employer can face thousands of dollars in reimbursed lost wages, along with appropriate penalties.